Witness Intimidation

Guide No.42 (2006)

The Problem of Witness Intimidation

This guide begins by describing the problem of witness intimidation and reviewing the factors that increase its risks. It then identifies a series of questions that can help analyze local witness intimidation problems. Finally, it reviews responses to the problem of witness intimidation as identified through research and police practice.

Witness intimidation is but one aspect of the larger set of problems related to protecting crime victims and witnesses from further harm. Related problems not directly addressed in this guide, each of which require separate analysis, include:

Some of these related crime problems are covered in other guides in this series, all of which are listed at the end of this guide.

Although the problem of witness intimidation has special significance for prosecutors, it also has important implications for police. This guide focuses on the issues and responses that are most relevant to police, although useful resources for prosecutors are highlighted where appropriate.

Witness intimidation plays a role in many types of crime and is related to other problems that police encounter during the course of an investigation. Witness intimidation, however, is not the same as repeat victimization. Although in both cases the same offenders may be responsible for multiple events, their motives are different. In witness intimidation, the intent is to discourage the victim from reporting a crime to police or from cooperating with prosecutors, whereas in repeat victimization, the motive is often acquisitive. However, repeat victims may believe that their subsequent victimization was in retaliation for reporting the initial crime, even where intimidation was not the motive.[1]

General Description of the Problem

Citizens who witness or are victimized by crime are sometimes reluctant to report incidents to police or to assist in the prosecution of offenders.† Such reluctance may be in response to a perceived or actual threat of retaliation by the offender or his or her associates, or may be the result of more generalized community norms that discourage residents from cooperating with police and prosecutors.†† In some communities, close ties between witnesses, offenders, and their families and friends may also deter witnesses from cooperating; these relationships can provide a vitally important context for understanding witness intimidation. Particularly in violent and gang-related crime, the same individual may, at different times, be a victim, a witness, and an offender.[2] Historically, witness intimidation is most closely associated with organized crime and domestic violence, but has recently thwarted efforts to investigate and prosecute drug, gang, violent, and other types of crime.

† In this guide, the term “witness” is used to refer both to victims and to bystanders who could provide information to police. The term “victim” is used to denote the victim of the initial crime.

†† Witnesses refuse to cooperate with police for reasons that are not related to intimidation. For example, a general lack of trust in the police may deter some witnesses from cooperating. In addition, research has shown that a desire for privacy, a desire to protect the offender from criminal prosecution, emotional attachments, economic dependence, or a desire to protect children may also deter victims of domestic violence from cooperating with police (Felson et al. 2002).

Witness intimidation takes many forms, including:

implicit threats, looks, or gestures

explicit threats of violence

actual physical violence

property damage

other threats, such as challenges to child custody or immigration status.

More specifically, offenders may:

confront witnesses verbally

send notes and letters

make nuisance phone calls

park or loiter outside the homes of witnesses

damage witnesses’ houses or property

threaten witnesses’ children, spouses, parents, or other family members

assault or even murder witnesses or their family members.

Threats are much more common than actual physical violence and are in fact just as effective in deterring cooperation.[3] Although some witnesses experience a single incident of intimidation, intimidation may also involve an escalating series of threats and actions that become more violent over time.[4] Other witnesses do not experience intimidation directly, but rather believe that retaliation will occur if they cooperate with police. Either way, they are deterred from offering relevant information that might assist police and prosecutors.

Particularly in communities dominated by gang and drug-related crime, residents have seen firsthand that offenders are capable of violence and brutality. Many also believe that offenders will return to the community after relatively brief periods of incarceration or will be able to arrange for intimidation by others while they themselves are incarcerated. The experience of violence in the community lends credibility to threats and creates a general sense of fear that discourages cooperation with police.

A fire set at this house in Baltimore killed a family of seven in 2002, drawing national attention to the problem of witness intimidation.

Case-specific intimidation involves threats or violence intended to discourage a particular person from providing information to police or from testifying in a specific case.

Community-wide intimidation involves acts that are intended to create a general sense of fear and an attitude of non-cooperation with police and prosecutors within a particular community.†

The prevalence of witness intimidation is difficult to quantify for many reasons. First, crime is underreported based upon a number of factors that have nothing to do with witness intimidation.†† Second, where intimidation is successful, victims and witnesses report neither the initial crime nor the intimidation.[6] Third, although victimization surveys and interviews with witnesses whose cases go to court are helpful, they capture only a subset of the larger population of witnesses. They do not provide information on the experiences of the many witnesses who drop out of the process before a suspect is charged or a case goes to court.[7] Finally, there has been no empirical research on the scope or specific characteristics of community-wide intimidation.

† Drive-by shootings and other acts of blatant violence promote fear among residents, as do actions specifically warning residents not to cooperate with police. In 2004, gang members from Baltimore, Maryland appeared in a DVD entitled Stop Snitching, in which they threaten harm to those who cooperate with police. Stop Snitching tee shirts have also appeared in retail outlets nationwide (Butterfield 2005).

†† In 2004, only 50 percent of violent crimes and 39 percent of property crimes were reported to police; however, only a very small portion of victims surveyed indicated that intimidation was the reason they did not report the crime. Most often, victims did not report crime because they believed that the incident was too trivial to involve police or that the matter was personal (Karmen 2004; Catalano 2005).

That said, small-scale studies and surveys of police and prosecutors suggest that witness intimidation is pervasive and increasing. For example, a study of witnesses appearing in criminal courts in Bronx County, New York revealed that 36 percent of witnesses had been directly threatened; among those who had not been threatened directly, 57 percent feared reprisals.[8] In the United Kingdom, a survey of witnesses appearing in court revealed that a majority had been affected by intimidation either through direct experience (53 percent) or because they feared intimidation (17 percent). Anecdotes and surveys of police and prosecutors suggest that witness intimidation is even more widespread.[9] Prosecutors estimate that witness intimidation plays a role in 75 to 100 percent of violent crime committed in gang-dominated neighborhoods, although it may play less of a role in communities not dominated by gangs and drugs.[10] The increasing prevalence of witness intimidation is a reflection of the same social and psychological factors that have changed the nature of crime and offenders over the past two decades, including:[11]

a lack of respect for authority, particularly among juvenile offenders

the expectation that life will be brief or will be spent in prison

a sense of powerlessness that leads to gang formation

the availability of firearms and a willingness to use them

increased penalties that raise the stakes of prosecution.

Most intimidation is neither violent nor life-threatening, but even a perception that reprisals are likely can be distressing and disruptive to witnesses.[12] Experiencing intimidation reduces the likelihood that citizens will engage with the criminal justice system, both in the instant offense and in the future.[13] Although the public tends to overestimate the actual risk of harm, its fear and the resulting reluctance to cooperate can have serious collateral consequences for the criminal justice system. Witness intimidation deprives investigators and prosecutors of critical evidence, often preventing suspects from being charged or causing cases to be abandoned or lost in court. In addition, witness intimidation lowers public confidence in the criminal justice system and creates the perception that the criminal justice system cannot protect the citizenry. As a result, police expend significant time and energy persuading witnesses to come forward; and when they do, police spend considerable energy reassuring and protecting them.

Factors Contributing to Witness Intimidation

Understanding the factors that contribute to the problem of witness intimidation will help to frame local analysis, to determine good effectiveness measures, to recognize key intervention points, and to select appropriate responses.

Intimidators

Intimidation is usually perpetrated by those involved in the original offense, although the original offender’s friends, family members, and criminal associates may also threaten or harm witnesses.[14] In gang-related crimes, friends, family members, and associates may be more likely to threaten and intimidate witnesses.[15] In addition to gang and drug-related crimes, intimidation is particularly prevalent in cases involving domestic violence, bias crime, harassment, and sex offenses.[16] In contrast, cases involving property crime, such as burglary or car theft, are rarely affected by intimidation.[17]

Although intimidation is a key feature of gang and drug-related violence, the offenders are not necessarily aligned with nationally affiliated gangs or large drug operations; members of loosely affiliated gangs and local dealers may also protect their interests through intimidation.[18] Surveys suggest that offenders with a sophisticated understanding of the criminal justice system may be less willing to engage directly in intimidation and will either refrain from attempting to intimidate witnesses or will permit others to intimidate witnesses on their behalf.[19]

Victims

Victims of intimidation are not a homogeneous group. Although all citizens who agree to serve as witnesses need to be protected from reprisals, their vulnerability depends largely upon circumstance and may therefore change over time. Further, intimidation is not evenly distributed socially or geographically. People in certain locations—inner cities, densely populated areas, and communities where social cooperation is poor—are more likely to suffer intimidation than are others.[20] The characteristics of those likely to be victims of intimidation cluster around several criteria, many of which appear to be interdependent.

Gender and age. Children and females may be at greater risk of intimidation than adults and males.[21]

Relationship. Those with close ties to an offender are at a greater risk of intimidation.[22] These ties can be romantic or familial; or the victim and offender may simply know each other from having mutual acquaintances or from living in the same neighborhood. Victims of domestic violence appear to be at an elevated risk for retaliation, especially where the victim lives with the offender, is economically dependent on the offender, or is compelled to remain in contact with the offender because of shared parenting responsibilities.[23]

Proximity. Victims and witnesses who live in geographic proximity to offenders are at a greater risk of intimidation than those who live in different neighborhoods or communities.[24] Surveys suggest that it is rare for an offender or his associates to leave their home community to intimidate a witness who lives in another area.[25]

Immigration status. Recent or illegal immigrants may be at an increased risk of intimidation.[26] In some Asian cultures, for example, intimidation is a key feature of gang-related extortion and gang members have a reputation for ruthlessness. Coupled with a fear of deportation and a lack of understanding of the role of police, such social experiences can lead to a greater susceptibility to threats and warnings not to cooperate with law enforcement.

Criminal involvement. Victims and witnesses with criminal records, active warrants, or active parole and probation conditions may be particularly hesitant to provide information to police. In addition, witnesses who were also accomplices to the original offense may be choice targets for intimidation. And in inter-gang violence, where the roles of offender, victim, and witness are often interchangeable and revolving,[27] victims and witnesses may not cooperate with police because they intend to retaliate against the original offender or because of peer group norms that discourage cooperation.

Locations and Timing

Many witnesses are intimidated long before they are asked to appear in court, most often by a community norm that discourages residents from cooperating with police. Most explicit acts of intimidation take place where police exert little control: at the witness’s home, while the witness is at school or at work, or while the witness is running errands or socializing in the neighborhood.[28] However, witnesses also report being intimidated at the scene of the crime, while at the police station making a statement or identifying a suspect, and sometimes while in the courthouse waiting to testify; some even report being intimidated while on the witness stand. The time between a suspect’s arrest and trial is the most dangerous; repeated and lengthy trial delays expand the opportunities available to a motivated intimidator.[29]

Motivations

Offenders attempt to intimidate victims and witnesses for a number of reasons. Gang members use intimidation to subdue challenges to their authority or to reclaim lost gang status.[30] Gang members and other offenders use intimidation to avoid detection by police and to avoid conviction once they are arrested. Compared to the penalties for violent crime, penalties for intimidation are relatively light. As a result, offenders may feel they have little to lose and much to gain by avoiding conviction through intimidation.[31] Finally, the use and increasing sophistication of DNA and other forensic testing mean that deterring witness cooperation may be one of the only ways left available to weaken the prosecution’s case.[32]

Understanding Your Local Problem

The above information provides only a generalized description of the problem of witness intimidation. To combat witness intimidation effectively, you must combine the basic facts with a more specific understanding of your local problem. Only by carefully analyzing your local problem will you be able to design an effective remedial strategy.

Stakeholders

The following groups have an interest in the witness intimidation problem and ought to be considered for the contribution they might make to gathering information about the problem and responding to it:

victim-witness units

crime victim advocacy groups

prosecutors

defense attorneys

courts

witnesses’ families and friends

witnesses’ employers

public housing authorities or apartment complex managers.

Asking the Right Questions

Intimidation can occur at any time, from the point when a criminal incident first occurs to the moment the witness provides evidence in court; hence, it is essential to collaborate with prosecutors, victim advocates, and other stakeholders in analyzing and solving the problem. Because many witnesses drop out of the process before their cases go to court, it is essential to survey witnesses and victims at multiple points in the process so that their responses address all the reasons and issues that deter them from cooperating fully. Finally, police cannot respond effectively to a problem if they do not recognize its occurrence. Police awareness can be increased through training, shift briefings, and police newsletters.[33] Guidance should be offered for spotting signs of intimidation; even something as simple as requiring officers taking statements or interviewing witnesses to ask about intimidation directly can be an effective analytical tool.[34] †Unfortunately, training curricula regarding the warning signs and typical behaviors of those who have been intimidated are not well developed.

† The Philadelphia District Attorney’s Office, Victim Services Division, utilizes a short interview guide to collect relevant facts about intimidation. It includes questions about the intimidator, type of intimidating conduct, and the time and place that the intimidation occurred. A copy of the interview guide is available in Finn and Healey (1996).

The following are some critical questions that you should ask in analyzing your local witness intimidation problem. Your answers to these and other questions will help you choose the most appropriate set of responses later on.

Incidents

What types of behaviors do victims and witnesses perceive as intimidating or threatening?

What do offenders say to witnesses that creates a fear of retribution?

How often are acts of intimidation violent? How often do they involve property damage?

Are the family members of witnesses threatened or intimidated?

What do witnesses believe will happen if they cooperate with police or prosecutors?

Is there a general sense among community members that they should not cooperate with police? If so, what contributes to this attitude?

In what proportion of reported crime does witness intimidation occur? What do these incidents have in common? Type of offense? Location? Offender profile?

In what proportion of crimes is intimidation unreported? What accounts for the failure to report incidents of intimidation?

Intimidators

Which individuals act or speak in ways that witnesses perceive as threatening? Offenders? Their associates? Friends? Family members?

After what types of crime does intimidation occur?

What roles do gangs and drugs play in intimidation?

Do the friends or family members of witnesses act or speak in ways that lead witnesses to not cooperate?

Do offenders focus their intimidation efforts within their own communities or do they travel outside their communities to deter witnesses from cooperating?

Victims

What are the characteristics of those who are deterred from cooperating with police and prosecutors? Gender? Age? Race? Criminal history? Previous victimization?

Why do some witnesses continue to cooperate with police and prosecutors, despite having been threatened?

What do witnesses say it would take for them to testify despite any intimidation?

Where do the victims of intimidation live and work in relation to the intimidators?

What types of relationships do witnesses have with those who intimidate them?

What roles do culture and immigration status play in intimidation?

Were those who are intimidated involved in the commission of the original offense? Do they have a history of criminal activity with the intimidators?

Why are those on parole or probation reluctant to cooperate with police and prosecutors? Are there specific violations that they are trying to conceal by not cooperating?

Locations/Times

Where do victims and witnesses feel most vulnerable to intimidation? Home? Work? School? Out and about in the community? At the precinct? In court?

When do incidents of intimidation occur? At the scene? When witnesses provide statements at the precinct? When witnesses are asked to identify suspects? During the trial? After the trial is over?

Motivations

What reasons do intimidators give for their behavior?

What do offenders indicate would deter them from trying to intimidate witnesses?

Current Responses

What has been done by police and prosecutors in the past to minimize case-specific intimidation?

What has been done in the past by police and prosecutors to address community-wide intimidation?

Have police or prosecutors inadvertently validated community perceptions or fears related to intimidation? If so, how? By losing a case where a witness testified? By eroding public trust during a police incident? By assisting in immigration enforcement in an ethnic neighborhood?

What are the penalties for witness tampering or intimidation? Are intimidators aware of them? Are they sufficiently harsh?

Which current responses focus on the victim or witness? Which focus on the offender and his or her family and associates?

What are the strengths of current responses to the problem of intimidation?

Are current responses sufficient to resolve the problem? If not, why not?

What other agencies or organizations can play a role in a comprehensive response to the problem of witness intimidation? Do police and prosecutors have existing relationships with these agencies or organizations?

What sources of funding are available to support the efforts of police and prosecutors in dealing with the problem of witness intimidation?

Measuring Your Effectiveness

Measurement will allow you to determine the degree to which your efforts have succeeded and may also suggest how your responses can be modified to produce the intended results. In order to determine how serious the problem is, you should measure the extent of your problem before you implement responses; in that way, measuring the problem after responses have been implemented will allow you to determine whether your solutions have been effective. All measures should be implemented in both the target area and surrounding areas. (For more detailed guidance on measuring effectiveness, see the companion guide to this series, Assessing Responses to Problems: An Introductory Guide for Police Problem-Solvers.)

The following are potentially useful measures of the effectiveness of responses to witness intimidation:

reduced number of witnesses who experience threats or intimidation

increased number of witnesses who provide information to police

increased number of witnesses who provide statements to police

increased number of witnesses who agree to testify in court

increased proportion of convictions.

The following may offer an indirect indication that the situation is improving:

increased proportion of crimes reported to police

increased number of witnesses who are aware of the protections that are available to them

increased number of witnesses who report intimidation†

increased number of offenders who are charged with intimidation

increased public confidence in the criminal justice system and its ability to protect the citizenry.

† The Savannah Police Department established a witness protection program with the goal of reducing the number of intimidation incidents. The number of incidents initially increased because police began to ask all victims and witnesses if they felt afraid or had experienced intimidation, rather than relying on victims and witnesses to initiate the discussion (Goldkamp, Gottfredson and Moore 1999).

Responses to the Problem of Witness Intimidation

Analyzing your local problem will give you a better understanding of the factors that contribute to it. Once you have analyzed your local problem and established a baseline for measuring effectiveness, you can consider possible responses to the problem.

The following response strategies will provide a foundation for addressing your particular intimidation problem. These strategies are drawn from a variety of studies and police reports. Several strategies may apply to your local problem. It is critical that you tailor responses to local circumstances and that you can justify each response based upon reliable analysis. In most cases, an effective strategy will involve several different responses. Because law enforcement alone is seldom effective in reducing or solving the problem, do not limit yourself to considering only what police can do;
rather, carefully consider whether others in your community share responsibility for the problem and whether they can help respond to it.

General Considerations for an Effective Response Strategy

Forming multi-agency partnerships. The appropriate party to address the threat of witness intimidation may change as a case moves through the criminal justice system. For example, whereas police may be responsible for protecting or supporting witnesses at the outset of a case, the responsibility might shift to the prosecutor when the case goes to trial. And depending upon the type of protection required, other agencies may need to become involved as well. For example, public housing, public benefits, and social services agencies may all
have a role to play where circumstances dictate that a witness should be relocated. Hence, planning and implementing a comprehensive program to prevent and address witness intimidation requires multiple actors: an organizing committee of administrators who are authorized to commit agency resources; a team to design program operations; a program administrator; case investigators; victim advocates; and police support.† Unfortunately, shared responsibilities can also result in blurred accountability.[35] For this reason, interagency agreements are sometimes needed to outline each agency’s responsibilities, the services to be provided, the financial ramifications and obligations, and the parameters for allowable expenses and services.[36] Not only do interagency agreements create accountability, but they also make service delivery more coordinated and efficient. Still, such agreements require significant levels of trust between agencies.

Limiting liability. Some police agencies are hesitant to implement comprehensive witness security programs because they fear that recognizing witness intimidation will create liability in the event that the intimidation is successful and harm befalls the witness. Liability can be limited by in a number of ways, including:

taking reports of intimidation seriously and engaging in the defined process for protecting witnesses

promising only those security services that can
reasonably be provided

documenting all offers of assistance and all efforts to protect witnesses, along with the acceptance or refusal of such assistance

making sure that witnesses understand the circumstances under which protections will be withdrawn and documenting all decisions to withdraw security.[37]

Strengthening ties between police and the community. Ideally, community residents will be committed to reporting crime and giving evidence in court; and in return, police will be committed to providing support, information, and protection to potential witnesses.[38] Fostering cooperation on the part of reluctant witnesses is a natural extension of community policing and community prosecution, which focus on engaging residents in preventing and responding to crime.[39] For example, mobile precincts can increase police visibility after a high-profile gang-related crime in an area where intimidation is likely to occur. Storefront precincts can increase the level of contact with residents and make it easier to provide encouragement and support. Community prosecutors can have a visible presence at crime scenes and can network with witnesses to build cases. Sensitivity to fear of intimidation can create trust and a sense that police recognize why some residents may be afraid to cooperate.†

† One police department avoids handing out official business cards at the scene. Instead, their cards read “Don’t talk to me here. Call me.” and provide residents with a direct phone number to investigating officers (Finn and Healey 1996).

Efforts to develop trust and to communicate understanding can also be enhanced by outreach efforts designed to educate residents about witness intimidation and to provide information about related services. Outreach efforts should involve multiple agencies including police, prosecutors, housing and other social service agencies, federal law enforcement agencies, the U.S. Attorney, and victim advocacy groups.[40] Because perceptions of the likelihood and severity of intimidation are often exaggerated, outreach is essential to minimize irrational fears and to provide reliable information.[41] Outreach efforts are also one of the only ways to reach witnesses whose fear prevents them from making any contact with the police at all. The most effective message is one that draws a connection between serving as a witness and preventing drug dealers and gang members from terrorizing communities.[42]

Finally, outreach is particularly essential in Asian communities and in communities with recent or illegal immigrants.[43] These residents may not be familiar with the criminal justice process and may need both information and encouragement to participate in it. Matching the cultural and linguistic skills of police and other outreach personnel to the target community can also encourage cooperation.

Assessing the risk of intimidation. The level of intimidation experienced by a witness should dictate the type and intensity of services provided by police, prosecutors, and other agencies. Standardized risk assessments will ensure that these decisions are made consistently, objectively, and fairly. In the United Kingdom, classification as a vulnerable or intimidated witness is based upon a number of factors: characteristics of the witness, such as age, gender, and physical and mental condition; the nature of the original offense; the relationship between the witness and the offender; the nature of the evidence the witness is able to provide; the characteristics of the defendant, such as criminal history, access to firearms, and connections to criminal networks; and the nature of any direct threats.[44] Assessments should be conducted periodically to determine whether the level of risk has increased or decreased and whether current protections are sufficient. Sharing the results of risk assessments will provide witnesses with a realistic understanding of potential dangers and allow them to make informed decisions about the types of protections they will commit to using.[45]

While risk assessments are useful for allocating resources, they may inadvertently invalidate the fears and anxieties of witnesses who do not meet the criteria for more intensive forms of assistance.[46] Further, most
intimidation experiences are too complex for standardized
risk assessment instruments to be useful.[47]

Choosing the best strategy. Criminal prosecutions typically serve several purposes: although they are intended to do justice in a particular crime, they often also serve as a means of addressing an underlying problem, such as drug dealing or gang activity. If there is reason to believe that witness intimidation might stymie criminal prosecutions, police should consider whether prosecutions requiring civilian witnesses are the best approach to dealing with a specific crime problem. Other approaches, such as civil remedies involving nuisance abatement or injunctions, can minimize the need to find individuals who are willing to testify in criminal court.

Specific Responses to Reduce Witness Intimidation

Protecting Witnesses

Minimizing the risk of identification witnesses face when reporting crime or offering statements. Particularly in neighborhoods where community-wide intimidation is a factor, residents may hesitate to cooperate with police at the scene of a crime because they fear being labeled as an informant or a “rat.” As a result, methods for reporting crime or offering witness statements that do not make cooperation obvious to observers are sometimes needed.[48] For example, police can refrain from interviewing witnesses at the scene, choosing instead to visit them at their homes in plainclothes after activity on the street has diminished. House-to-house calls that disguise which residents are cooperating can also be helpful, although these additional
visits increase police workloads. Some witnesses may be more comfortable meeting at the precinct or in a neutral place, such as a church or a school.

Protecting the anonymity of witnesses. Given the risk of threats and intimidation, many witnesses do not want offenders to learn their identities or addresses. Practices such as broadcasting witness names and addresses over the police radio, asking witnesses to identify suspects out in the open, and revealing a witness’s identity to a suspect can all jeopardize witness safety. Limiting the information that is available about witnesses and taking other protective measures can effectively combat these issues.

Protecting the anonymity of witnesses once a case goes to trial can be more problematic. Recent court cases have debated the balance between witness safety and a defendant’s Sixth Amendment right to cross-examination. To date, court opinions have emphasized the rights granted to defendants by the Sixth Amendment of the Constitution.[49] However, numerous measures have been used effectively to limit opportunities for intimidation to occur in the courtroom. These include allowing the witness to give evidence via a closed circuit television link and using screens that allow the judge, jury, and attorneys to see the witness while at the same time shielding the witness from the defendant and members of the public.[50] In some cases, the witness’s name and address are not read aloud in court, making it more difficult for a defendant’s fellow gang-members or criminal associates to target the witness.[51]

Using alarms and other crime prevention devices. Intruder alarms, motion detectors, cameras, and outdoor lighting can be used to deter intimidators from targeting witnesses at home.† Target hardening devices, such as deadbolt locks, window locks, window bars, grates, and pin locks on sliding doors can also make unauthorized entry more difficult. All of these measures can give intimidated witnesses a greater sense of security in their homes.

† Crime prevention officers should be routinely involved in these activities. In addition, the Fresno District Attorney’s Witness Intervention Team partnered with ADT Security Services to protect witnesses who chose not to relocate after experiencing intimidation. ADT provided free panic alarm technology in the witnesses’ homes to afford a greater sense of security (Goldkamp, Gottfredson and Moore 1999).

When not at home, intimidated witnesses can be equipped with portable personal alarms.† These pendant alarms can be linked to cellular networks so that they work in any location.[52] Some models open a voice channel upon activation so that police can hear what is happening and can reassure the witness that assistance is on the way. Alarms are effective because they assure witnesses that intimidation efforts will receive a rapid response. And because they do not require a constant police presence, personal alarms are less costly than bodyguards, while still providing the same around the clock protection.[53]

† The use of portable personal alarms has been shown to reduce victims’ levels of anxiety in domestic violence situations (Lloyd, Farrell and Pease 1999).

Reducing the likelihood of contact between witnesses and offenders. Most often, acts of intimidation are committed at a witness’s home, workplace, or school, or during the normal course of the witness’s daily activities. Minimizing the opportunities and avenues by which witnesses come into contact with offenders can reduce the incidence of intimidation. For example, witnesses can alter their normal routines by varying the routes taken to work or school and making their schedules irregular and unpredictable. Because many witnesses receive nuisance calls or are contacted by telephone, obtaining an unlisted telephone number and using caller identification and call blocking can provide additional insulation from unwanted contact.[54]

Transporting witnesses to and from work and school. Many witnesses feel vulnerable when traveling to and from work or school, or while attending to their business in the community. Police escorts during these times can deter offenders from making contact. However, such protection schemes consume significant police resources and may not be feasible for broad application. In addition, the presence of an escort may draw unwanted attention to the witness. Such intensive protection should be reserved for only those witnesses who are at a high risk of serious injury.

Supporting witnesses. Over the past two decades, federal legislation has established a list of victims’ rights and defined a group of services that federal agencies must provide to crime victims.† Most state and county prosecutors afford crime victims these same rights and services. Such programs can also be implemented by police departments. Departments that offer victim assistance services have found that witnesses are more willing to report crimes and to cooperate with prosecutors; in addition, such witnesses offer more effective testimony and also demonstrate improved recall.[55]

In general, such assistance programs encourage victims to cooperate in the criminal justice process and provide counseling and other services designed to address the emotional impact of victimization. Most offer emergency services, counseling, advocacy and support, claims assistance, and court-related services.[56] Of particular benefit to police in cases involving intimidation, victim advocates typically provide:

general information about the criminal justice system and what the witness can expect

engagement with victims early in the case and ongoing contact throughout the case.††

† See U.S. Department of Justice, Office of the Attorney General (2000) for a complete discussion of victim and witness assistance programs.

†† The Suffolk County, Massachusetts victim assistance program targets victims and witnesses in gang-related cases. Intensive personal contact was required; notices sent through the mail and occasional phone calls were not sufficient to allay fears or to sustain engagement (Johnson, Webster and Connors 1995).

Some assistance programs provide 24-hour hotlines with staff trained to counsel victims and to refer emergency situations to police where appropriate.[57] Some police hesitate to work closely with victim advocates, fearing that they will interfere with police procedures, create more work or stress, or will ask inappropriate questions that might compromise the integrity of an investigation.[58] In the past two decades, however, research has shown that victim assistance programs produce a number of benefits to police, including reduced stress, faster return to patrol after responding to a crime scene, and additional and higher-quality evidence.[59] In addition, victim advocates commonly handle all referrals for assistance and services, freeing police from this responsibility. Finally, advocates can calm victims and witnesses and address their emotional needs so that they are better prepared to provide accurate information.

However, overloading victim advocates is a key concern.[60] Their services should be seen as a complement to, not a replacement for, support offered by police. In particular, police should offer reassurance, provide witnesses with cell phones or other direct contact numbers, and maintain ongoing contact to reassess the level of threat and to assuage any other concerns witnesses may have.

Keeping witnesses and defendants separated at the courthouse. Other than at home, witnesses are most often intimidated in the courthouse, both while waiting to testify and while in the courtroom giving testimony. Not only must witnesses endure a face-to-face encounter with the defendant, but they may also be apprehensive about contact with the defendant’s family and friends. Key danger areas include courthouse entrances, hallways, waiting areas, refreshment areas, and restrooms. Separate waiting rooms and entrances for witnesses and defendants can be useful. Some jurisdictions use an on-call system, in which witnesses are provided with pagers that summon them to the courthouse when they are needed to testify. This practice eliminates the need for witnesses to remain in the courthouse throughout the day, thereby reducing opportunities for intimidation to occur.[61]

Many victim assistance programs provide escort services to and from court; in addition, advocates often remain with witnesses throughout the day and accompany them into public areas of the courthouse. This can be especially effective in gang-related cases, where fellow gang members may attend the trial in large numbers in order to show their solidarity with the defendant and to intimidate witnesses into withholding or changing their testimony. The use of video cameras at courtroom entrances can discourage such practices, as gang members on probation or parole may not want to risk being seen associating with other gang members, lest they violate the conditions of their supervision.[62] Studies in the United Kingdom have found that courthouse-based efforts have effectively reduced the negative effects of intimidation.[63]

Relocating witnesses. Because it is unusual for offenders to travel outside of their neighborhoods to intimidate witnesses, simply moving a witness to another location can effectively protect him or her from harm. Of course, the key to this strategy is to ensure that the new location remains confidential. Out of boredom, or because they are reluctant to sever ties with friends and family, the witnesses themselves may compromise the secrecy of their new locations. Further, many witnesses require support from numerous agencies, such as public housing and social services. The confidentiality of transactions made on their behalf should be assured in formal interagency agreements.

Police and prosecutors consider relocation to be the most reliable method of protecting witnesses.[64] However, it is costly, time consuming, and requires a significant level of cooperation, from both public agencies and witnesses themselves. Originally, the only type of relocation available was through the Federal Witness Security Program, which involved permanent relocation and complete identity changes for witnesses and their families. Since the inception of the federal program in 1970, less extravagant models have been established by state and local jurisdictions, requiring a less significant commitment of public resources and a less extreme commitment from witnesses. These three types are discussed below.

Emergency relocation. When danger is imminent, witnesses can be quickly moved to a shelter, hotel, motel, or other facility.† Witnesses are registered using false names and payment is made through an intermediary, not by the police or prosecutor.[65] Witnesses can also be placed with family or friends in other communities or even out-of-state, usually for airfare or the price of a bus ticket. These placements usually only last for a few days or weeks, until the threat has passed or a more permanent solution is found.

† A witness security program in Savannah, Georgia used housing at a nearby military base to provide a safe living environment for witnesses who had been threatened. Baltimore, Maryland established safe houses to provide emergency shelter to intimidated witnesses. However, when witnesses returned to their home communities, they often revealed the location of the safe house, compromising its security (Goldkamp, Gottfredson and Moore 1999).

Temporary or short-term relocation. It may be necessary to provide for extended periods of relocation when witnesses remain at risk for longer periods of time. Such short-term programs may be appropriate in jurisdictions where gangs are loosely organized, small, or poorly established.[66] Witnesses can either be placed in rental units or with out-of-state friends or family until the trial is over. Housing witnesses with others can be cost-effective and also offers a source of emotional support that advocates and police cannot provide. These arrangements are most successful when police confirm that the sponsoring family is willing to house the witness, when the witness stays with someone unknown to the offender, when police in the receiving jurisdiction are notified, and when the witness is monitored regularly to ensure that she remains willing to testify.[67]

Most short-term relocation programs cover the cost of relocating, such as rent, security deposit, and moving expenses, and also provide monthly subsidies for utilities, food, clothing, and other living expenses.† Due to the expense involved, financial support is always time-limited, although a witness is usually free to stay in the new location if she so desires. The U.S. Attorney has access to the federal Emergency Witness Assistance Program, in which assistance is limited to only one month.[68]

† The Illinois Gang Crime Witness Protection Program struggled to gain speedy approval for the outlay of funds. These delays contributed to the underutilization of the program, as local police and prosecutors could not take action without a commitment for reimbursement from the state. This situation improved once the process for distributing funds was streamlined (Bauer et al. 1997).

Short-term relocation strategies are greatly enhanced by partnerships with federal and local public housing authorities.† When a witness already resides in a public housing development, a rapid shift of residence can be made with few complications.†† It may also be beneficial to determine whether the witness is eligible for public housing or other forms of public assistance. The transfer of benefits to the new location can be cumbersome and time-consuming without proper interagency agreements.

† It is important to understand the difference between the types of publicly assisted housing. “Public housing” refers to publicly-owned residential properties for eligible families at assisted rents that reflect the ability to pay. “Section 8 housing” refers to certificates and vouchers for federal rent subsidies that can be used to pay for a privately-owned house or apartment. Section 8 certificates are particularly useful because they allow for placement in a number of neighborhoods (Finn and Healey 1996).

†† Finn and Healey (1996) offer extensive guidance for working with public housing authorities, including HUD eligibility requirements, tips for overcoming waiting list barriers, using floating vouchers, and advocating with landlords.

Permanent relocation. The Federal Witness Security Program provides secret and permanent relocation of witnesses and their families to places of safety.† Witnesses must change their identities, sever all contacts with friends and family, and agree to not return to their home communities. In exchange, the program provides safety and security, as well as start-up funding for housing and subsistence until the witness becomes self-supporting. State and local prosecutors can refer witnesses to the program and reimburse the federal government for the cost. Although the program reports high conviction rates and a good safety record, some significant issues must be considered. First, the psychological impact of severing ties and taking on a new identity should not be ignored; participants report high levels of stress, anxiety, and depression.[69] Second, the program only accepts those who provide significant testimony in major cases. Third, because these witnesses often have extensive criminal records themselves, they may pose a danger to the community of relocation.[70] Finally, secret relocation creates obvious difficulties for child custody arrangements and debtors seeking repayment.[71]

† In the late 1990s, Scotland- Strathclyde established a witness protection program modeled after the Federal Witness Security Program. Effective elements of the program included collaborating with housing, social services, and health agencies; establishing direct links between administrators and those responsible for day-to-day operations; and hiring officers capable of working with a wide cross section of people with a range of domestic, financial, and welfare issues. For more information see Fyfe and McKay (1999) and Fyfe and McKay (2000a).

Deterring Intimidators

The responses discussed above address the symptoms of intimidation (i.e., protecting the intimidated) rather than the causes of intimidation (i.e., deterring the intimidators). By implementing responses that address a culture that tolerates intimidation, police and prosecutors can demonstrate their determination to hold intimidators accountable for their actions.[72] The following responses focus on actions that can be taken in criminal court proceedings.

Admonishing intimidators. When witnesses or victims tell police they are afraid or have experienced direct intimidation, police can visit the offender and his or her family and friends to caution them regarding their behavior and to explain the laws concerning witness intimidation and obstruction of justice. In court, judges should be vigilant about threatening gestures or actions and should admonish defendants or spectators who display such behaviors. Some jurisdictions educate judges about the types of courtroom intimidation that are exhibited by gang members, such as courtroom packing or wearing black.[73] Although admonishments by police and judges are associated with a reduction in intimidation reported by witnesses, judicial warnings not to contact witnesses may have limited effectiveness in gang and drug-related cases.[74]

Requesting high bail and no contact orders. In cases where the risk of intimidation is significant, prosecutors can seek high bail to keep defendants in jail and away from witnesses. Where this strategy is used, bond hearings cannot be a mere formality; witness statements and risk assessments should be prepared in advance and presented in court. Prosecutors should seek release conditions that forbid contact with witnesses and victims and make sure that the consequences for violating such conditions are clearly articulated. In some jurisdictions, prosecutors file multiple charges and request a separate bond for each; prosecutors may also file federal charges where appropriate.[75] The effectiveness of this strategy is limited by several factors.[76]

The time between the original offense and arrest leaves ample opportunity for intimidation to occur.

Even if the defendant is incarcerated, his or her friends and family can still intimidate witnesses.

Defendants may be able to contact witnesses by
telephone, even while incarcerated.

Bond schedules are usually strict and intimidation charges usually only require a small amount to be posted.

Incarcerating intimidators might not be possible in jurisdictions where jail crowding is a concern or where witness intimidation does not constitute an exception to population caps.

Increasing penalties for intimidation. In many jurisdictions, witness intimidation is a misdemeanor that results in sentences concurrent with those for the original offense. Thus, offenders who are charged with a violent offense that carries a long sentence may feel they have little to lose by trying to deter witnesses from providing evidence. Making witness intimidation a felony-level offense, increasing maximum sentences, and requiring such sentences to be served consecutively might deter offenders from tampering with witnesses.[77]

Prosecuting intimidators. The frequency with which offenders are charged with intimidation varies widely from jurisdiction to jurisdiction.[78] Prosecutors can demonstrate their intolerance of witness intimidation and their commitment to resident safety by vigorously prosecuting offenders who harass, threaten, injure, or otherwise intimidate or retaliate against witnesses. Witness intimidation may also be cause to revoke probation or parole.

Responses With Limited Effectiveness

Increasing patrols in a target area. If police are made aware of the addresses of witnesses who have experienced intimidation, they can increase the frequency of patrol in the surrounding neighborhood. Although the increased visibility may relieve anxiety, the chances of actually intervening in an incident are slim unless police are posted near the witnesses around the clock. Limited resources are better deployed using one of the more targeted measures discussed above.

Compelling witnesses to testify. Most states have material witness laws that permit the arrest and detention of any person with knowledge of a crime who refuses to provide information in court.[79] Witnesses who refuse to testify are subject to contempt actions and may be prosecuted for obstruction of justice.[80] In theory, compelling witnesses to testify shifts the responsibility from the witness to the prosecutor and may therefore reduce the risk of intimidation and the level of anxiety experienced by the witness. However, others are still likely to believe that the witness has chosen to cooperate.[81] Although efforts to compel a witness to testify may provide him or her with needed confidence, threatening a witness with a contempt citation can also backfire, causing an already reluctant witness to develop a sudden and mysterious loss of memory. Because of concerns for the rights of victims and the lack of proof that compelling witnesses to testify is effective, this should be the option of last resort.

Summary of Responses to Witness Intimidation

The table below summarizes the responses to witness intimidation, the mechanisms by which they are intended to work, the conditions under which they should work best, and some factors that should be considered before a particular response is implemented. It is critical that responses are tailored to local circumstances and that each response can be justified based upon reliable analysis. In most cases, an effective strategy will involve implementing several different responses, because law enforcement alone is seldom effective in reducing or solving the problem.

Addresses the emotional impact of victimization to make cooperation less daunting and to better prepare witnesses to provide accurate information

… victim advocates have access to a wide range of services to address the constellation of witness needs; advocates are properly trained so that their actions do not compromise the integrity of the case

Victim advocates cannot be solely responsible for supporting all witnesses, lest they become overburdened

… costs are minimized by placing witnesses with friends or relatives; witnesses obey all rules regarding contact with their home communities; additional services are available to address witnesses’ emotional, financial, and domestic needs

Witnesses may not be willing to obey program rules; location of new housing may be compromised; witnesses with criminal backgrounds may present a risk to public safety in their new communities; child custody and other legal issues must be managed; the emotional impact on witnesses can be severe

Reduces the opportunities for intimidators to confront witnesses in the community

… victim impact statements are presented at bond hearing; release conditions and the consequences for their violation are clearly articulated

Time between offense and arrest leaves ample time for intimidation to occur; friends and family may still intimidate witness; defendants may be able to contact witnesses by phone, even while incarcerated; bail for intimidation is typically low; jail crowding may prevent the incarceration of potential intimidators

Home Office (2001). Early Special Measures Meetings Between the Police and the Crown Prosecution Service and Meetings Between the Crown Prosecution Service and Vulnerable or Intimidated Witnesses: Practice Guide. London: Great Britain Home Office Communication Directorate.

U.S.
Department of Justice, Office of the Attorney General (2000). Attorney General Guidelines for Victim and Witness Assistance. Washington, D.C.: U.S. Department of Justice. [Full Text]

U.S. Department of Justice, Office for Victims of Crime (1997). Law Enforcement’s Promising Practices in the Treatment of Crime Victims: A Report to Promote the Development and Expansion of Victim-Oriented Policies and Practices in Law Enforcement Agencies. Washington, D.C.: U.S. Department of Justice.

U.S.
Department of Justice, Office for Victims of Crime (1998). New Directions From the Field: Victims’ Rights and Services for the Twenty-First Century. Washington, D.C.: U.S. Department of Justice.

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